Jackson ex rel. Field v. Sinclair

It cannot be that the plaintiff’s attorney was warrantable in this hasty proceeding. Here was a decision pronounced at the last moment of the term ; and the plaintiff should have taken no step, till the defendant had a fair opportunity to make his election between a verdict and a bill of exceptions, and procure the verdict or bill to be settled. An application- to the Court frequently becomes necessary to this end. 'I ¿ere is, I believe, no- settled course, in practice,which this matter should, take, as to time or manner; but it is clear,- that" the party ought not to be precluded all benefit from his stipulation,. by the unreasonable hasté of his adversary. He must, in some fair and equitable way, have the benefit of it.

Here has been great haste, but still I do not think we ought to relieve the party, unless he now elect whether he will have á verdict or bill of exceptions, and show a bona fide intention to prosecute á writ of error.]

Platt. . The attorney swears to that intention. As I Understand the practice, this stipulation is itself a stay of all proceedings, at least, for a reasonable time after the decision. We elect to proceed by bill of exceptions.

I have no doubt the- issuing a writ-of possession was irregular. I remember a case in which I was counsel, wherein it was held that the plaintiff was bound by this stipulation to wait a reasonable time, at least, or to apply to the Court for leave to proceed notwithstanding the stipulation.

There can be no doubt that we ought to set aside this writ of possession; but we will think farther upon the question as to the terms, if any, upon which this should- be done, and the ulterior relief to be given.]

At another day,.

said that the Court, on conferring upon this motion, held the proceedings after judgment to be alto*45gether irregular. There is no settled course of practice on this subject; but the party against whom the judgment is rendered should, at. least, have fair notice, and a reasonable chance to make an election, or the Court should be moved in relation to the matter, before the execution is, proceeded upon. The execution must be set aside, and a writ of restitution issue, with costs, on the defendant’s stipulating to bring no action for the trespass. The defendant’s- attorney may take 20- days, within which to make and serve a. bill of exceptions ; and, moreover, the, lessor of the plaintiff must pay to the defendant the rent which the former may-have received of the tenant.

Rule accordingly;